Story by, Paul Mensah Nsor
The High Court of Justice (Commercial Division 2) in Accra has set aside in its entirety a US$33.3 million arbitral award obtained by Ashanti Port Services Limited (APSL) against Justmoh Construction Limited over the Boankra Inland Logistics Terminal Project.
In a 40-page ruling delivered this morning by His Lordship John-Mark Nuku Alifo, the court granted Justmoh Construction’s application under Section 58 of the Alternative Dispute Resolution Act, 2010 (Act 798). The court accepted the submissions of lead counsel Prof. Kwame Gyan, Esq., on all principal grounds and clarified that the matter was a supervisory application to set aside an arbitral award, not an appeal on the merits.
The court found that APSL lacked the legal capacity to commence arbitration when it filed its Notice of Arbitration on 19 December 2023. According to the ruling, APSL failed to obtain prior board authorisation before initiating proceedings, and a later attempt to ratify the Chief Executive Officer’s decision on 25 January 2024 could not cure the defect. “Capacity goes to jurisdiction,” the court stated, adding that capacity must exist at the time proceedings are initiated and cannot be acquired midway.
The court also ruled that the board which purportedly authorised or ratified the arbitration was not properly constituted under APSL’s Shareholders’ Agreement. That agreement required a multi-stakeholder board composed of nominees from Afum Quality Limited, Ghana Ports and Harbours Authority (GPHA), and the Ghana Shippers’ Authority (GSA). The January 2024 board meeting was held in the absence of GPHA and GSA nominees, rendering its resolution invalid.
The court further held that APSL had no cause of action at the time the arbitration was commenced. The underlying Concession Agreement had already been terminated by the GSA on 5 August 2023, and the Government of Ghana, through the Ministry of Transport, had exercised step-in rights and taken possession of the project infrastructure, materials, plant, and site. GPHA was subsequently directed to assume management of the project.
On the US$33.3 million payment at the centre of the dispute, the court found that the funds were paid by GPHA as share subscription in APSL, not as a loan recoverable by APSL from Justmoh. The money was transferred directly into Justmoh’s account in September 2022 as an advance mobilisation payment under the Engineering, Procurement and Construction (EPC) Contract for Phase 1A of the project.
The court observed that the principle of unjust enrichment weighed heavily against APSL’s claim. It would be unfair, the court said, for APSL to receive a refund of monies it did not advance, and equally unjust for it to benefit from its own breach of contract, which led to the State’s intervention in the project.
The court rejected APSL’s argument that Justmoh had waived its jurisdictional objections by participating in the arbitration. It held that the doctrine of waiver applies only to minor procedural irregularities, not to fundamental jurisdictional issues.
Background to the Dispute
The Boankra Inland Logistics Terminal is a flagship inland port project structured as a concession involving the Government of Ghana, the Ministry of Transport, and GSA, with GPHA and Afum Quality Limited as participating shareholders. APSL was incorporated as the concessionaire vehicle.
In August 2022, APSL engaged Justmoh Construction as the EPC Contractor for Phase 1A. Justmoh later issued a notice of termination of the EPC Contract on 18 October 2023, citing material breaches by APSL, including non-payment of certified Interim Payment Certificates. Justmoh filed its application to set aside the 10 December 2025 arbitral award within the statutory time limit.
The court’s decision removes the liability imposed on Justmoh Construction to repay the US$33.3 million plus interest and consequential reliefs.
